Congress has incorporated
into the Clean Air Act, the Clean Water Act, the
Resource Conservation and Recovery Act, and other
Federal environmental statutes provisions
authorizing private parties to bring enforcement
actions in the federal courts. These "citizen suit"
provisions generally permit any person or
organization to seek injunctions abating activities
that violate agency rules, standards, or permits.
In addition, the Clean Water Act and the Hazardous
and Solid Waste Amendments of 1984 permit
plaintiffs to seek civil penalties in private
enforcement actions.

As use of private
enforcement actions has grown, issues related to
coordinating public and private enforcement
activities have arisen. Coordination in the
development and use of criteria regarding the
bringing of cases and maintaining basic consistency
in the imposition of penalties is important for
several reasons. Notwithstanding the different
enforcement perspectives and goals of public and
private plaintiffs, inconsistencies in case
selection or penalty policy may create actual and
perceived unfairness to regulated entities, as
similarly situated parties receive varying
treatment. Uncertainties about the likelihood or
outcome of enforcement actions may increase
litigation and decrease voluntary compliance. Lack
of coordination may also make it difficult for the
Environmental Protection Agency and cooperating
state agencies to deploy their limited enforcement
resources in the most efficient and effective
manner. The recommendation that follows proposes
administrative steps which the Environmental
Protection Agency can take to provide better
guidance to those involved in the enforcement
process, and to achieve better coordination between
public and private enforcement.

Recommendation

1. Articulation of
Enforcement Policy

In order to achieve better
coordination between public and private enforcement
efforts, the Environmental Protection Agency
should, as feasible, enunciate its views concerning
enforcement criteria, calculating penalties, and
settling contested cases. When enunciated, the
agency's views, or an announcement of their
availability, should be published in the Federal
Register. [FN1] Public knowledge of the
means by which the EPA calculates penalties will be
particularly helpful to courts performing similar
calculations in private enforcement actions, and
the agency should consider whether more detailed
specification of its policies in this respect is
feasible. EPA should offer opportunities,
consistent with Recommendation 76-5, for public
comment on statements of policy regarding
calculation of penalties. [FN2]

[FN1] In
administering the Clean Water Act, for example, the
EPA has begun this process by issuing a proposed
rule to revise program reporting requirements for
the assessment of permit noncompliance. See, e.g.,
49 FR 29720 (July 23, 1984).

[FN2] See
Recommendation 76-5, Interpretive Rules of General
Applicability and Statements of General Policy, 4
ACUS Recommendations and Reports 62 (1979), 1 CFR
305.76-5. The Administrative Conference recommended
that agencies adopting significant interpretive
rules or policy statements normally should provide
an opportunity for public comment.

2. Improvement of
Information Systems

The availability of
accurate, complete, and current information about
(a) the compliance status of regulated persons and
firms, and (b) the outcome of public and private
enforcement actions, is essential both for the
formulation and implementation of agency
enforcement strategies and for the effective use of
private enforcement actions. When designing
management information systems and reporting
requirements, the Environmental Protection Agency
should consider improving the quality of such
information and its availability for private
enforcement, subject to statutory limitations on
disclosure of confidential information. The Office
of Management and Budget should give similar
consideration to the role of compliance information
when reviewing EPA data- gathering proposals.

3. Notice of Private
Actions

When the Environmental
Protection Agency receives from a private party
notice of an alleged violation, the EPA should
request from that party copies of all complaints
[FN3] and other significant pleadings,
settlement agreements, and judicial decrees in any
action relating to the alleged violation, in which
the EPA is not a party. [FN4]

[FN3] The
Hazardous and Solid Waste Amendments of 1984, Pub.
L. 98-616, section 401 (to be codified at 42 U.S.C.
6972 (b)(2)(F)), provide that a plaintiff bringing
an action under the citizen suit provision of the
Resource Conservation and Recovery Act must serve a
copy of the complaint on the Attorney General and
the Administrator of the EPA.

[FN4] Nothing in
this recommendation is intended to suggest that a
request for or receipt of any such notice or other
information or document has or should have any
preclusive effect upon the federal government's
ability to take enforcement action against the
alleged violator.